Handling College Costs in Your Divorce

By: Jessica A. Bryant

When in the middle of a divorce or custody case one aspect that often gets less consideration than some of the immediate issues/concerns is how to handle the children’s post-secondary/college expenses. Child support in Colorado ends at the age of 19 unless the child emancipates before the age of 19 (becomes legally emancipated, marries, or if the child enters active military duty). Due to the nature of divorce and custody cases, often parties are focused on the here and now, instead of the future.

Under Colorado law, for any child support orders after July 1, 1997, unless the child is determined to be mentally or physically disabled, or unless the child is still in high school (but not beyond the age of twenty-one), a court does not have the authority to order any child support payments or other payments for the benefit of the child beyond the age of 19. This includes the court lacking authority, under child support and divorce statutes, to forcibly order either parent to pay for college (whether the child is under 19 or not). However, parents are always free to agree to provide for the children’s post-secondary (college) expenses and can do so via written agreement, filed with the court. That agreement will be every bit as legally binding and enforceable as any other court orders.

Many parents want to assist their children with post-secondary expenses if they can and, often, parents want to make sure the other parent bears a similar responsibility. However, it is important to be cautious about what language is used in an agreement to provide for college expenses. For example, it is not uncommon for a parenting plan to include a provision that the parents will equally divide college costs for the child. Without any limiting factors, though, such a provision could bind a parent beyond their means. What if the child wants to go to an out of state, private college that costs $20,000+ per year? That provision would still bind the parent to pay 50% of such expense. What if the child changes his or her major several times and takes 6 years to graduate? That provision would require both parents to pay 50% of the cost for all 6 years. What, exactly, does “college costs” include? One parent could argue it includes the child’s rent, living expenses, etc. and try to bind the other parent to provide 50% of those costs as well. Lastly, and important to consider if you are entering into this agreement when the child is just a few years old, there is no way to know the cost of any college by the time the child will attend.

Many people might think it was obvious that they didn’t agree to pay for an out of state college, or all the child’s living expenses, or beyond a traditional four year education. However, the court is bound to enforce the black-and-white letter of the agreement and, without clarifying statements in the agreement, a person could be on the hook for expenses that they weren’t anticipating. A person might also think that, if that happens, they can always change the order. But without the other parent’s agreement you would have to ask the court to change it, which requires proving a substantial and continuing change of circumstance such that the terms are unfair. If incomes have remained the same (or, even worse, increased) and there is no evidence in the agreement itself that there was a cap on costs, the parents will provide, the divorce court may not be inclined to change the terms of the college expense provision.

Therefore, it’s very important to be cautious when including college expense provisions in an agreement, as you may be stuck with them until your children complete their post-secondary educations. I rarely advise my clients to include post-secondary provisions in an agreement. My rationale is why should you bind yourself to pay for a future expense that even the court cannot make you pay without your express agreement. However, if you feel strongly about making sure your parenting plan provides for your children’s post-secondary expenses, there are a few ways to include such a provision while also protecting yourself. One such way is to establish college funds for the children, set forth how much each parent will contribute to each college fund, and then set forth how that fund will be allocated when the child is ready for college (or what will happen if the child chooses to not go to college). Another way would be to put a cap on how much each parent will directly contribute to the child’s post-secondary expense. A third way would be to just put clarifying language in the agreement regarding what type of post-secondary education it covers, a cost limit, a time limit, specific expenses to be covered (just tuition or rent, books, supplies, insurance, etc.)? By considering these issues before entering into a parenting plan, you can ensure you are not unreasonably binding yourself, and your wallet, for the future. Entering into an agreement in your divorce can be an effective tool for trying to ensure the other parent might contribute. Just remember that you are binding yourself, too.